The Court of Appeal has dismissed Ulster Bank Ireland DAC’s appeal against a refusal to strike out contract and negligence claims brought by Eoin Fannon. It allowed the appeal in relation to defamation and trespass claims against the bank, finding those claims unstateable as pleaded.
The judgment, delivered by Court of Appeal President David Barniville on 6 March 2024, concerns an application to dismiss claims, not a trial of the underlying dispute. The court did not decide whether the alleged repayment agreement existed, whether Ulster was negligent, or whether the loan and mortgage had been validly assigned.
Fannon says that in November 2014 Ulster agreed to a three-year repayment arrangement under which he and his wife would pay €958 a month and full interest and capital repayments would be suspended. Ulster denied making such an agreement in the High Court. At the appeal hearing, however, it accepted that there was an arguable case that a binding variation of the original loan agreement had been made. It continued to dispute the agreement’s character and legal effect.
Fannon alleges that Ulster failed to tell Promontoria (Oyster) DAC about the arrangement before transferring the loan and mortgage, and that this contributed to Promontoria’s appointment of a receiver over the mortgaged Dublin apartment in February 2018. Ulster relied on an alleged 2016 assignment, arguing that claims should be pursued against Promontoria. But it did not produce the deed of transfer, so the court could not determine on the dismissal application whether the assignment was “absolute” for the purposes of the relevant statute. The judgment says Ulster may still prove the deed at any eventual trial.
The court also declined to entertain substantial arguments Ulster raised for the first time on appeal, including arguments about whether it owed a duty of care. It said the High Court judge had applied the correct principles and that the contract and negligence claims were not so clearly bound to fail that they could be dismissed without trial.
The defamation and trespass claims against Ulster were treated differently. The amended claim did not plead defamatory words or acts by Ulster or its agents, and Fannon declined the opportunity to amend or add particulars. The court also found an irremediable weakness in the trespass claim against the bank. It did not decide whether the defamation claim was time-barred.
The court directed Fannon to file a further amended statement of claim within seven days, reflecting that those two claims remain only against the receiver and Promontoria. It proposed that Fannon receive 75% of the appeal costs, subject to any alternative submissions from the parties within seven working days. The court did not finally settle costs in this judgment.